Plaintiffs Steve Yourke and Kristin Richards ( Plaintiffs ), on behalf of themselves and

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3 1 1 Plaintiffs Steve Yourke and Kristin Richards ( Plaintiffs ), on behalf of themselves and all similarly situated United States residents, allege the following: INTRODUCTION 1. This is a civil action seeking injunctive relief, monetary damages, and restitution from Defendants Bank of America, N.A. and Bank of America Corporation. (collectively herein the Bank, Bank of America, or Defendant ) arising out of their unfair, deceptive, and unconscionable assessment and collection of excessive overdraft fees.. The Bank provides debit cards and/or ATM cards (collectively herein check cards ) to its checking account customers. Through those check cards, customers may engage in transactions using funds directly from their accounts or may withdraw money from their accounts at automatic teller machines. These are called point of sale ( POS ) or debit transactions.. If, according to the Bank s accounting practices detailed below, a customer does not have sufficient funds in his or her account the transaction is considered an overdraft. The Bank may honor or allow an overdraft to go through despite the lack of funds in the account. If the Bank allows such a POS or debit transaction to proceed, the Bank charges its customer s account $ for each separate overdraft, after an initial rate of $ for the first occurrence. These fees are known as overdraft fees.. Before check cards existed, banks occasionally extended the courtesy of honoring paper checks written on overdrafted or otherwise deficient accounts for customers who were typically in good standing. Banks extended this courtesy largely because the third party involved in a sales transaction allowed the customer to purchase goods or services with a check with an expectation that funds would be available and that the check would clear. For example, if a customer used a check to purchase groceries, the grocery store would only know if the check cleared after the groceries had been purchased.. The same considerations are not present when the transaction is one with a check card. The bank could simply decline to honor debit or POS transactions made with check cards where there are insufficient funds in the account. Retail and service transactions would simply not take place if the consumer were unable to present an alternative form of payment. ATM

4 1 1 transactions could proceed if the Bank provided a warning that an overdraft fee would be incurred and the consumer chose to proceed nevertheless. In fact, until a few years ago, most banks simply declined debit and/or POS transactions that would overdraw an account.. Instead of declining debit and/or POS transactions when there are insufficient funds, however, or warning the customer that an overdraft fee will be assessed if he or she proceeds with the transaction, Bank of America routinely processes such transactions in order to charge its customers an overdraft fee of $ or $, even when the transaction is for only a few dollars. This automatic fee-based overdraft scheme is designed and intended solely to increase overdraft fee revenue.. Although it is possible to do so, the Bank does not alert its check card customers at the time a POS transaction or ATM withdrawal is made that the transaction will overdraft their account and cause them to incur fees.. Because the Bank s check card customers are not notified of the potential overdraft and are not given the option to decline the check card transaction or to provide another form of payment, the customers incur monetary damages in the form of overdraft fees.. According to rules proposed by the Board of Governors of the Federal Reserve System, the Office of Thrift Supervision, Treasury, and the National Credit Union Administration ( Agencies ) Injury [caused by overdraft charges] is not outweighed by countervailing benefits.... This is particularly the case for ATM withdrawals and POS debit card transactions where, but for the overdraft service, the transaction would typically be denied and the consumer would be given the opportunity to provide other forms of payment without incurring any fee. F.R. 0-01, (May, 0).. The Bank s overdraft policies make it difficult for a customer to avoid injury even if a customer carefully tracks the balance in his or her account. In fact, the Agencies have stated that Injury resulting from such policies, is not reasonably avoidable by the consumer. F.R. 0-01,. ( It appears that consumers cannot reasonably avoid this injury if they are automatically enrolled in an institution s overdraft service without having an opportunity to opt out. Although consumers can reduce the risk of overdrawing their accounts by carefully

5 1 1 tracking their credits and debits, consumers often lack sufficient information about key aspects of their account. For example, a consumer cannot know with any degree of certainty when funds from a deposit or a credit for a returned purchase will be made available. ). The Bank seeks to maximize the number of overdraft fees it charges check card customers because overdraft fees are a primary source of revenue for the Bank. 1. The Bank s overdraft fees can cost the account holders hundreds of dollars in a matter of days, or even hours, when they may be overdrawn only by a few dollars. Even more egregious, a customer s account may not actually be overdrawn at the time the overdraft fee is charged or at the time of the POS transaction. 1. The Bank has not followed the list of best practices with respect to overdraft programs set forth in the Joint Guidance on Overdraft Protection Programs (herein Joint Guidance ) (attached hereto as Exhibit A), issued by the United States Department of the Treasury, the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation and the National Credit Union Administration. These best practices include: Provide election or opt-out of service. Obtain affirmative consent of consumers to receive overdraft protection. Alternatively, where overdraft protection is automatically provided, permit consumers to opt out of the overdraft program and provide a clear consumer disclosure of this option. 0 F.R. 1-01, 1.. The best practices listed in the Joint Guidance also advises banks to Alert customers before a transaction triggers any fees. When consumers attempt to withdraw or transfer funds made available through an overdraft protection program, provide a specific consumer notice, where feasible, that completing the withdrawal may trigger the overdraft fees. 0 F.R.D. 1, 1. It goes on to advise that This notice should be presented in a manner that permits consumers to cancel the attempted withdrawal or transfer after receiving the notice. Id.. The list of best practices set forth in the Overdraft Protection: A Guide For Bankers issued by the American Bankers Association includes offering customers the option of opting out of any overdraft programs, and informing customers, before they access funds, that a

6 1 1 particular point of sale or ATM transaction will cause them to incur overdraft fees. (See Exhibit B, attached, at, ).. The Bank does not disclose or does not reasonably disclose to its customers that they have the right to opt out of the Bank s overdraft scheme. The Bank also fails to notify consumers when use of a check card, such as an ATM or POS transaction, will cause an overdraft fee.. The Bank s lack of disclosure regarding the ability to opt out of the overdraft scheme and its failure to notify customers when the use of a check card, such as an ATM or POS transaction, will cause an overdraft fee, is a violation of California s consumer protection laws and the implied covenant of good faith and fair dealing in the Bank s Deposit Agreement, governing its checking accounts.. In an effort to cause as many overdrafts as possible, the Bank also manipulates and reorders debits from highest to lowest during the course of a day.. Upon information and belief, Bank of America has a computer automated overdraft system programmed to maximize the number of overdrafts, and thus the amount of fees charged, per customer.. As a result of the Bank s manipulation and alteration of customers transactions records, funds in a customer s account are depleted more rapidly and more overdraft fees are likely to be charged for multiple smaller transactions. Indeed, overdraft charges are likely to occur at times when, but for the manipulation and alteration, there would be funds in the account and no overdraft would occur. For example, if a customer has an account with a $0 balance and makes four transactions of $ and one later transaction of $0 the same day, the Bank debits the transactions from the account largest-to-smallest, thus subjecting the customer to four overdraft fees. Conversely, if the $0 transaction were debited last (in the order it was made), the customer would only be subject to one overdraft fee. See FDIC Study of Bank Overdraft Programs, November 0, at, n.1.. Thus, it is through manipulation and alteration of customers transactions records that the Bank maximizes overdraft penalties imposed on customers

7 1 1. The Bank reorders transactions for no reason other than to increase the number of exorbitant overdraft fees it can charge. This practice is a violation of California s consumer protection laws and the implied covenant of good faith and fair dealing in the Bank s Deposit Agreement.. In addition, the Bank misleads its customers regarding its reordering practices. Instead of unequivocally telling its customers that it will reorder debits from highest to lowest, the Bank instead states in its contract that We may determine in our discretion the order of processing and posting deposits, fees, charges, check, debits and other items to your account. We may credit, accept, pay, certify or return deposits, fees, charges, checks, debits and other items arriving to your account on the same day in any order at our option. This statement is deceptive because it is, in fact, the practice of the Bank to always reorder debit from highest to lowest. This statement thus violates California s consumer protection laws and the implied covenant of good faith and fair dealing in the Bank s Deposit Agreement.. Upon information and belief, the Bank s policies have a disproportionate impact on low-income customers. JURISDICTION. This Court has jurisdiction in this action under Article VI, section of the California Constitution and. of the California Code of Civil Procedure. Jurisdiction is also proper under Civil Code 0, et seq., Business & Professions Code 0, et seq., and Business & Professions Code 00, et seq. Plaintiffs do not assert any claims arising under the laws of the United States of America. The amount in controversy does not exceed $,000 per class member. In the alternative, class members hereby waive any damages in excess of $,000. Jurisdiction over the Bank is proper because it has purposefully availed itself of the privilege of conducting business activities in California and because it has generally maintained systematic and continuous business contacts with this state. VENUE. Venue is proper in this district pursuant to California Code of Civil Procedure. The Bank has approximately 1,0 branches in California and has tens of thousands of

8 1 1 customers who are residents of the State of California. Through its substantial contacts there, the Bank is subject to personal jurisdiction in California. Therefore, the Bank is deemed to reside in this district.. Venue is also proper in this district because Plaintiff Yourke and many Class Members live here, because the Bank has branches in the County of San Francisco, and because the Bank has received substantial fees from consumers who hold accounts here. CHOICE OF LAW. Plaintiffs bring this action under the laws of the State of California.. No enforceable choice-of-law agreement governs here or compels the application of different states laws. 0. California has the most significant relationship with the parties and to the events and occurrences that form the basis of this litigation. The Bank maintains approximately 1,0 branches in California. The Bank has over % of the market share in California, and is the largest bank in the State. All of the named Plaintiffs reside in California. Tens of thousands of other California residents are Bank of America checking account holders who have been subject to unlawful overdraft fees. 1. California s interest in this action, which seeks to protect the rights and interests of California residents, is greater than any other state.. Application of California law is neither arbitrary nor fundamentally unfair because California has significant contacts and a significant aggregation of contacts that create a state interest in this litigation. PARTIES. Plaintiff Steve Yourke is, and at all relevant times hereto has been, a resident of San Francisco, California. Mr. Yourke is a former customer of the Bank who incurred multiple improper overdraft fees in connection with use of his Bank of America check card.. Plaintiff Kristin Richards is, and at all relevant times hereto has been, a resident of Citrus Heights, California. Ms. Richards is a current customer of the Bank who was charged multiple improper overdraft fees in connection with use of her Bank of America check card

9 1 1. Bank of America Corporation, the parent of all of the Bank of America entities, is the largest bank and financial holding company in the United States in terms of deposits and market capitalization. The Bank boasts the country's most extensive branch network, with more than,0 locations covering some 0 states and the District of Columbia. In 0, the Bank employed over,000 people and had a net income of $. billion on revenues of over $ billion. The Bank has a headquarter in Charlotte, North Carolina, and does business throughout the State of California and in the County of San Francisco, both directly and through its subsidiaries.. Bank of America, N.A., is a national bank incorporated in the State of Delaware with a principal place of business in Charlotte, North Carolina. Among other things, Bank of America is engaged in the business of issuing debit cards for its customers to use in conjunction with their checking accounts.. Bank of America California, N.A. is a direct subsidiary of Bank of America Corporation, with its principal place of business in San Francisco, California. Bank of America California, N.A. conducts substantial business in this County.. The true names and capacities of Defendants named as DOES 1-0, inclusive, are currently unknown to Plaintiffs, and therefore are named as Defendants under fictitious names pursuant to California Code of Civil Procedure,. Plaintiffs will seek leave of Court to amend the Complain to reflect their true identities if and when they become known. CLASS ALLEGATIONS. Plaintiffs bring this lawsuit as a class action on behalf of themselves and all others similarly situated as members of a proposed plaintiff Class pursuant to California Code of Civil Procedure and California Civil Code 1. This action satisfies the numerosity, commonality, typicality, adequacy, predominance, and superiority requirements of those provisions. 0. The Class is defined as: All individuals residing in California who, during the last four years, have had a checking account with Bank of America and have been issued a check card with that account, and who have been charged overdraft fees, including those made in

10 1 1 connection with a transactions involving a check card ( Class, Class members, Consumer, and/or Consumers ). 1. The following persons shall be excluded from the Class: (1) Defendants and their subsidiaries and affiliates; () all persons who make a timely election to be excluded from the proposed Class; () governmental entities; and () the judge(s) to whom this case is assigned and any immediate family members thereof.. Plaintiffs reserve the right to modify or amend the Class definition before the Court determines whether certification is appropriate.. The Class for whose benefit this action is brought is so numerous that joinder of all Class members is impracticable. While the exact number and identities of individual Class members are unknown at this time, Plaintiffs are informed and believe that thousands, if not tens of thousands, of California residents have been assessed overdraft fees by the Bank in connection with use of their check cards.. The claims of the representative Plaintiffs are typical of the claims of the Class in that the representative Plaintiffs, like all Class members, were charged overdraft fees by the Bank. The representative Plaintiffs, like all Class members, have been damaged by the Bank s misconduct in that they incurred and/or will incur the unlawful overdraft charges. Furthermore, the factual basis of the Bank s misconduct are common to all Class members and represent a common thread of unconscionable, unfair and/or deceptive misconduct resulting in injury to all members of the Class.. There are numerous questions of law and fact common to the Class and those common questions predominate over any questions affecting individual Class members.. Among questions of fact common to the Class are whether the Bank: (a) opt out of the Bank s overdraft scheme; (b) does not clearly disclose to check card customers that they have the right to does not obtain affirmative consent from checking account customers prior to processing a transaction that would overdraw the account and result in an overdraft fee;

11 (c) does not alert its customers that a check card transaction will trigger an overdraft fee and does not provide the customer the opportunity to cancel this transaction; (d) manipulates and reorders transactions so that it can increase the number of overdraft charges it imposes; (e) maximize overdrafts; (f) manipulates and reorders debits from highest to lowest in order to imposes overdrafts and overdraft fees when, but for reordering transactions, there would otherwise be sufficient funds in the account; and (g) engages in practices that have damaged Plaintiffs and Class members.. Among the questions of law common to the Class are whether the Bank: (a) engages in deceptive or unfair acts and practices in violation of California 1 1 consumer protection laws, including, but not limited to, California Business & Professions Code 0, et seq., and California Civil Code 0, for which Plaintiffs and the other members of the Class are entitled to recover; (b) (c) (d) (e) (f) converts Plaintiffs and Class members funds; breaches the implied covenants of good faith and fair dealing; is unjustly enriched as a result of its overdraft fee policies and practices; causes injury to Plaintiffs and the other Class members; and engages in practices that warrant equitable, injunctive relief.. Plaintiffs claims are typical of the claims of the other members of the Bank s unfair implementation of centralized, common overdraft fee policies and practices and arise out of the same unconscionable provisions of the Bank s Deposit Agreement and Disclosures and other related documents. Plaintiffs have suffered the harm alleged and Plaintiffs have no interests antagonistic to the interests of any other Class member.. Plaintiffs are committed to the vigorous prosecution of this action and have retained competent counsel experienced in the prosecution of class actions, and in particular, class actions on behalf of consumers and against financial institutions. Accordingly, Plaintiffs are

12 1 1 adequate representatives of the Class and will fairly and adequately protect the interests of the Class. 0. A class action is superior to other available methods for the fair and efficient adjudication of the controversy. Since the amount of each individual Class member s claim is small relative to the complexity of the litigation, and due to the financial resources of the Bank, no Class member could afford to seek legal redress individually for the claims alleged herein. Therefore, absent a class action, the Class members will continue to suffer losses and the Bank s violations of the law will proceed without remedy. FACTUAL ALLEGATIONS A. Bank of America. 1. According to its website, Bank of America is one of the world's largest financial institutions. It has more than million consumer and small business relationships with more than,000 retail banking offices, more than,000 ATMs and award-winning online banking with nearly million active users, and has clients in countries. Id. It claims to have relationships with percent of the U.S. Fortune 00 companies and 0 percent of the Fortune Global 00. Id.. The Bank is a national bank subject to the National Bank Act, 1 U.S.C. 1, et seq., and OCC regulations.. The terms of the Bank s checking accounts are contained in a written standard account holder agreement. The Deposit Agreement and Disclosures effective February 1, 0, is attached as Exhibit C. The Deposit Agreement is currently a 1-page, single-spaced document written in small font.. The Bank s Deposit Agreement states that [i]n most states we process and post items within each category from the highest to lowest dollar amount (p., emphasis added). The Deposit Agreement does not describe the states to which this applies. It further states that the the high-to-low posting order may result in more insufficient funds items and more fees, even though it will almost always result in more fees (Id., emphasis added; see also pp. -)

13 1 1. The Deposit Agreement also states that the Bank may charge you a fee for each insufficient funds item whether we pay, permit, return, decline or reject the item. (Id. at ).. The Bank publishes a pamphlet that, upon information and belief, is available to customers at the Bank branches, titled a Personal Schedule of Fees. Upon information and belief, there is one Personal Schedule of Fees for each state in which the Bank conducts business, including California. The California schedule (hereinafter Fee Schedule ) is attached hereto as Exhibit D. The Fee Schedule provides Overdraft Item Fee and NSF: Returned Item Fee For the first day your account has an occurrence, fee for each overdraft item and for each returned item is $.00 each item. The Fee Schedule further provides: For the second and subsequent days your account has an occurrence, fee for each overdraft item and for each returned item is $.00 each item. Fee Schedule at p.. An occurrence is defined as a day with at least one overdraft item or one returned item. Id.. The Bank also publishes Important Information About Your Card Agreement and Disclosure (herein, Card Agreement, attached as Exhibit E). The Card Agreement supplements the Deposit Agreement and Disclosures and related Personal Schedule of Fees (collectively, the Deposit Agreement ) that apply to each Bank of America deposit account that you link to your card. Card Agreement at p.1.. The Deposit Agreement and related documents, including the Fee Schedule and Card Agreement, fail to disclose to depositors that they have the option to opt out from the Bank s overdraft scheme. However, it is possible for customers to opt out of the scheme upon request. For instance, after several requests to opt out, Plaintiff Yourke was permitted to opt out of the scheme.. At the time that the Bank s check card is used, for example at a POS or at an ATM, the Bank is able to determine almost instantaneously whether there are sufficient funds in a customer s account to cover that particular transaction. The Bank has the technological capability to decline transactions or notify customers at that very moment that the particular check card transaction would result in an overdraft. The Bank could give customers the option to decline the

14 1 1 transaction to avoid incurring the overdraft fee, but it does not do this because it seeks to maximize its overdraft fees. 0. The Deposit Agreement also contains an arbitration agreement and a class action waiver which states YOU AND WE ARE BOTH GIVING UP THE RIGHT TO TRIAL BY JURY, AND THIS SECTION PRECLUDES YOU AND US FROM PARTICIPATING IN OR BEING REPRESENTED IN ANY CLASS OR REPRESENTATIVE ACTION OR JOINING OR CONSOLIDATING THE CLAIMS OF OTHER PERSONS (HEREINAFTER REFERRED TO AS THE CLASS ACTION WAIVER. ). Deposit Agreement at p Under California Civil Code 0., the Arbitration and Waiver of Jury & Class Action Provision of the Deposit Agreement are unconscionable in that the Deposit Agreement and related documents, to the extent they may be deemed contracts at all, are contracts of adhesion because, among other reasons, they are standardized forms, imposed and drafted by the Bank, which is a party of vastly superior bargaining strength, and relegate to the depositor only the opportunity to adhere to them or reject them and because they lead to overly harsh results for consumers. B. The Bank s Overdraft Policies Are Unconscionable.. Under California Civil Code 0., the Bank s overdraft policies are unconscionable in the following respects, among others: (a) The Bank does not disclose or reasonably disclose to customers that they have the option to opt out of the Bank s overdraft scheme; (b) The bank does not obtain affirmative consent from checking account customers prior to processing a transaction that would overdraw the account and result in an overdraft fee; (c) The Bank does not alert its customers that a check card transaction will trigger an overdraft fee and does not provide the customer the opportunity to cancel that transaction; (d) The Deposit Agreement and related documents, including the Fee Schedule and Card Agreement, to the extent they may be deemed contracts, are contracts of adhesion in

15 that they are standardized forms, imposed and drafted by the Bank, which is a party of vastly superior bargaining strength, and relegates to the depositor only the opportunity to adhere to them or reject them; (e) The amount of overdraft fees are disclosed in an ineffective, ambiguous, misleading and deceptive manner, since they are not contained in the Deposit Agreement, but rather in a different and separate document, the Fee Schedule, which is not signed by the depositor; and (f) The Deposit Agreement provided to California customers is ineffective, 1 1 ambiguous, deceptive and misleading in that it does not unambiguously state that it always reorders debits from high to low, even though the Bank always reorders transactions in this way for California customers so as to maximize overdrafts and revenue for the Bank. C. Plaintiff Steve Yourke s Account History. Plaintiff Steve Yourke is a former checking account customer of Bank of America. He opened his account with the Bank in or about April 0. The Bank issued Mr. Yourke a check card when he opened his account.. The Bank has charged Mr. Yourke with multiple overdraft fees. For example, on December, 0, the Bank sent Mr. Yourke a notice that, as of December, 0, the Bank had received notice of five transactions, for $., $., $., $.0 and $., that his account had become overdrawn for each of these transactions and that the Bank had charged $ fee for each such transaction, for a total of $. If the Bank had not manipulated and reordered the transactions from highest to lowest, Mr. Yourke would have incurred only two overdraft fees instead of five overdraft fees.. On May, 0, the Bank sent Mr. Yourke a notice that, as of May 1, 0, two transactions, for $0 and $., had caused his account to be overdrawn and that the Bank had charged him a fee of $ for each such charge. If the Bank had not manipulated and reordered the transactions from highest to lowest, Mr. Yourke would have incurred one overdraft fee instead of two overdraft fees

16 1 1. In addition to the fees that Mr. Yourke was charged for overdrafts as the result of reordering of transaction in December 0 and May 0, there were many other overdraft fees he incurred as the result of the Bank s manipulation and reordering of transactions starting in at least February 0 until the present.. On multiple occasions, the Bank charged Mr. Yourke with overdraft fees based solely on the fact that he did not have sufficient funds in his account to cover prior overdraft fees charged by the Bank. For instance, in or about November or December 0 he was charged multiple overdraft fees based on the fact that he incurred overdraft fees without sufficient funds in the account to cover them.. The Bank never notified Mr. Yourke at the time he made the check card transactions, including the POS transactions described above, that his checking account was overdrawn or that it would charge him an overdraft fee as a result of the transaction.. The Bank never declined to pay any of Mr. Yourke s check card charges, even when his account was overdrawn. 0. In the past four years, the Bank has charged Mr. Yourke at least $,000 in overdraft fees. D. Plaintiff Kristin Richards Account History 1. Plaintiff Kristin Richards is a current checking account customer with Bank of America. She opened her account on or about September 0, 0. At that time, the Bank issued Ms. Richards a check card.. The Bank account that Ms. Richards opened online was advertised as a free checking account. At the time she opened her account, the Bank did not inform her about overdraft fees or provide her with the ability to opt out of the overdraft scheme. Instead, the Bank asked Ms. Richards to accept the terms and conditions associated with her account even though the full disclosure was not available online. The Bank mailed the agreements that pertain to her account to Ms. Richards after she had opened her account and accepted the terms

17 1 1. The Bank charged Ms. Richards for overdraft fees incurred when she made withdrawals from a Bank of America ATM on or about October, 0. The Bank did not warn Ms. Richards that the withdrawals would cause her to overdraft her account.. The Bank charged Ms. Richards an unwarranted $ overdraft fee on October, 0 even though there was approximately $.0 in her account at the time that the overdraft fee was imposed.. Many of the transactions for which Ms. Richards was charged overdraft fees were related to use of her check card, including POS transactions, even though there were sufficient funds in her account to cover them.. Between October, 0 and October, 0, the Bank charged Ms. Richards two overdraft fees of $ each and one overdraft fee of $. If the Bank had not manipulated the timing of her transactions by reordering them from highest to lowest, Ms. Richards would only have incurred one overdraft fee instead of three fees between October, 0 and October, 0.. In one day, on November, 0, the Bank charged Ms. Richards five overdraft fees of $, for a total of $. According to her bank records, there was approximately $0. in her account at the time the Bank imposed the first overdraft fee, enough to cover that first transaction.. As a result of these five improper overdraft fees, totaling $, Ms. Richards account overdrafted. Because her account was already negative due to the improper overdraft fees, her account became even more negative when three additional debits were posted to Ms. Richards account on November, 0. Accordingly, on November, 0, the Bank charged Ms. Richards three more overdraft fees of $ each, for a total of $.. If the Bank had not manipulated Ms. Richards transactions by reordering them from highest to lowest, Ms. Richards would only have incurred one overdraft fee instead of eight overdraft fees between November, 0 and November,

18 Bank of America charged Ms. Richards a $ or $ fee for each overdraft, regardless of whether there were sufficient funds in her account and regardless of the size of the POS transaction that could have led to an overdraft. 1. Ms. Richards protested the fees to Bank of America by calling Bank of America s customer service line, by visiting a Bank of America branch office in Roseville, California, and by contacting Bank of America through its website.. In response to one of Ms. Richards inquiries, Bank of America stated that it implemented a change to the way Check Card transactions are processed on March, 0. It further stated that Ms. Richards was sent notice of this change on her June 0 statement and then on her March 0 statement, despite the fact that Ms. Richards did not even open her Bank of America account until September 0.. Finally, in response to Ms. Richards repeated and insistent protests, the Bank ultimately refunded $ to her account, which is approximately the value of three $ overdraft fees.. As a result of the improper overdraft fees that Ms. Richards was charged, her socalled free checking account was not free.. In addition to the circumstances described above, there are other occasions that Bank of America has improperly charged Ms. Richards overdraft fees.. The Bank never notified Ms. Richards at the time she made the check card transactions, including the POS transactions described above, that her checking account was overdrawn or that it would charge her an overdraft fee as a result of the transaction. damages.. As a result of these improper overdraft fees, Ms. Richards has suffered monetary FIRST CLAIM FOR RELIEF (Violation of Consumers Legal Remedies Act Cal. Civ. Code 0, et seq.). Plaintiffs, individually and on behalf of all others similarly situated, hereby incorporate by reference the allegations contained in the foregoing paragraphs as if fully set forth herein

19 1. This claim for relief is brought pursuant to the California Consumer Legal Remedies Act, California Civil Code 0, et seq., (the CLRA ). 0. Defendant provides services within the meaning of Civil Code 1(b) and Defendant is a person within the meaning of Civil Code 1(c) and 0.. Purchasers of Defendant s services, including the Plaintiffs and other members of the Class, are consumers within the meaning of Civil Code 1(d) and 0.. Plaintiffs and each and every Class members purchases of the services sold by Defendant constitute a transaction within the meaning of Civil Code 1(e) and 0.. The polices, acts and practices of Defendant as described above were intended to result in the sale of services to Plaintiffs and the other Class members. These actions violated, and continue to violate, the Consumer Legal Remedies Act in at least the following ways: 1 (a) The Bank makes deceptive representations in connection with the services in question in violation of Civil Code 0(a)() and (); (b) The Bank represents that its services have characteristics, uses or benefits which they do not have in violation of Civil Code 0(a)(); and (c) The Bank s Deposit Agreement includes unconscionable provisions in violation of Civil Code 0(a)().. As a result of the Bank s violation of the CLRA, Plaintiffs and the other Class members have incurred damages in the form of overdraft fees.. The Bank has intentionally engaged in this conduct.. Despite its superior knowledge and awareness of the illegality of enforcing the unconscionable provisions, the Bank intentionally withheld, and continues to withhold, such knowledge from its account holders and has improperly continued to assess overdraft fees in a deliberate scheme to boost business profits and/or to reap unconscionable unjust enrichment to itself. This conduct was and is willful, malicious and oppressive, and in conscious disregard of the rights of Plaintiffs and the Class

20 1 1. Plaintiffs and the other Class members have suffered and will continue to suffer irreparable damage unless the Bank is enjoined from continuing its unlawful and unfair practice of assessing overdraft fees in the manner in which they are currently assessed.. Venue is proper pursuant to Civil Code 0(c) because the Bank does business in the City and County of San Francisco. A declaration from Plaintiff Yourke establishing this Court as the proper venue for this action is attached hereto as Exhibit F. 0. By nature of the aforementioned injury, Plaintiffs and the Class have no adequate remedy at law. 1. Pursuant to 0(a)() of the CLRA, Plaintiffs seek an order enjoining the above described wrongful practices of the Bank, including, but not limited to, an order: (1) enjoining the Bank from continuing to collect unconscionable overdraft fees; () requiring the Bank to disclose to its customers that they have the right to opt out of the Bank s overdraft scheme and providing them with a process to do so; and () requiring the Bank to notify its customers when a POS and/or ATM transaction will cause them to incur an overdraft charge and requiring the customer to make an affirmative election whether or not to proceed.. On April, 0, Plaintiffs sent a CLRA notice letter to the Bank, a copy of which is attached hereto as Exhibit G. If the Bank fails to provide appropriate relief for its violations of CLRA 0(a)(), () and () within 0 days of receipt of Plaintiffs notification, in accordance with Civ. Code (b), Plaintiffs are entitled, under CLRA 0, to recover or obtain any of the following relief for the Bank s violations of CLRA 0(a)(), () and (): (a) (b) (c) actual damages under CLRA 0(a)(1); restitution of property under CLRA 0(a)(); punitive damages under CLRA 0(a)() and because the Bank has engaged in fraud, malice or oppression; (d) (e) attorneys fees and costs under CLRA 0(d); and any other relief the Court deems proper under CLRA 0(a)()

21 1 1 SECOND CLAIM FOR RELIEF (Violations of California Business & Profession Code 0, et seq.). Plaintiffs, individually and on behalf of all others similarly situated, hereby incorporate by reference all of the foregoing paragraphs as if fully set forth herein.. The Bank s conduct described herein violates Business and Professions Code 0 (The Unfair Competition Law, or UCL ) in the following respects: (a) The Bank s conduct in charging overdraft fees is unconscionable, a violation of California Civil Code 0(a)() and, consequently, constitutes an unlawful business act or practice within the meaning of the UCL; (b) The Bank s practices, as described herein, violate California Civil Code 0(a)(), () and (), and consequently, constitute unlawful business acts or practices within the meaning of the UCL; (c) The Bank s policies and practices regarding overdraft fees constitute unfair business acts or practices within the meaning of the UCL; and (d) The Bank s policies and practices regarding overdraft fees are likely to mislead the general public and, consequently, constitute fraudulent business acts or practices within the meaning of the UCL.. The harm to Plaintiffs and the Class arising from the Bank s unlawful, unfair and fraudulent practices outweighs the utility, if any, of those practices.. The unlawful, unfair and fraudulent business practices of the Bank are immoral, unethical, oppressive, unscrupulous, unconscionable and/or substantially injurious to Plaintiffs and members of the Class.. As a result of the Bank s violation of the UCL, Plaintiffs and members of the Class have paid, and/or will continue to pay, excessive amounts of money for banking services and thereby suffered and will continue to suffer actual damages.. Pursuant to California Business and Professions Code, Plaintiffs and the Class that they seek to represent are therefore entitled to:

22 (a) an Order requiring the Bank to cease the acts of unfair competition alleged herein; (b) an Order enjoining the Bank from continuing to collect overdraft fees from California consumers on check-card transaction, including POS and ATM transactions, unless the consumer is notified at the time of the transaction that an overdraft fee will be charged and unless the consumer is given the option to decline the transaction without incurring an overdraft fee; (c) full restitution of all overdraft fees paid to the Bank on check card transactions, including POS and ATM transactions, pursuant to California Code of Civil Procedure ; 1 1 (d) (e) Civ. Proc... pre-judgment interest at the highest rate allowable by law; and payment of their attorneys fees and costs pursuant to, inter alia, Cal. Code THIRD CLAIM FOR RELIEF (Conversion). Plaintiffs incorporate by reference and re-allege all paragraphs previously alleged herein. 0. Plaintiffs and Class members own and have the right to possess the money in their checking accounts. 1. The Bank interfered, and continues to interfere, with Plaintiffs and Class members possession of this money by assessing unwarranted and unlawful overdraft fees as the result of check card transactions, including POS and ATM transactions, despite the fact that Plaintiffs and the Class members had and/or have sufficient funds in their accounts to cover these transactions at the time they were and/or are made.. Plaintiffs and Class members never affirmatively consented to the Bank s direct debit of overdraft fees from their checking accounts as a result of check card transactions including POS and ATM transactions that occurred at a time when there were sufficient funds in their accounts to cover these transactions

23 1 1. Plaintiffs and Class members have been, and will continue to be, damaged by the Bank s wrongful assessment of overdraft fees in an amount that is capable of identification through the Bank s records. 1. Plaintiffs are entitled to punitive damages because the Bank has engaged in fraud, malice or oppression. FOURTH CLAIM FOR RELIEF (Breach of Implied Covenant of Good Faith and Fair Dealing) 1. Plaintiffs, individually and on behalf of all others similarly situated, hereby incorporate by reference all of the foregoing paragraphs as if fully set forth herein. 1. Under California common law, a covenant of good faith and fair dealing is implied into every contract. 1. The Bank violated this covenant of good faith and fair dealing in the Deposit Agreement between it and Plaintiffs and the Class by charging Plaintiffs and the Class unconscionable overdraft fees and disclosing the mechanism for assessing these fees in a deceptive and misleading manner. 1. Plaintiffs and members of the Class performed all, or substantially all of the significant duties required by the Deposit Agreement, Fee Agreement and Card Agreement. 1. The conditions required for the Bank s performance under the Deposit Agreement, Fee Agreement and Card Agreement had occurred. 1. The Bank unfairly interfered with the right of Plaintiffs and Class members to receive the benefits under the Agreement. 1. Plaintiffs and the Class have been, and will continue to be, damaged by the Bank s breach of the implied covenant of good faith, and the resulting overdraft fees in an amount that is capable of identification through the Bank s records. FIFTH CLAIM FOR RELIEF (Unjust Enrichment and Restitution) 1. Plaintiffs, individually and on behalf of all others similarly situated, hereby incorporate by reference all of the foregoing paragraphs as if fully set forth herein

24 By charging excessive overdraft fees pursuant to unconscionable contract terms, in violation of the CLRA, Cal. Civ. Code 0(a)(), ()(), and in violation of the Cal. Bus. Prof. Code. 000, the Bank unjustly received a benefit at the expense of Plaintiffs and Class members. 1. It is unjust to allow the Bank to retain the profits from its charging of unlawful and unconscionable overdraft fees without providing compensation to Plaintiffs and the Class. 1. The Bank acted with conscious disregard for the rights of Plaintiffs and Class members. 1. Plaintiffs and Class members are entitled to restitution. PRAYER FOR RELIEF WHEREFORE, Plaintiffs, on behalf of themselves and the members of the Class they seek to represent, demand a jury trial and judgment as follows: 1. Preliminary and permanent injunctive relief enjoining the Bank from charging overdraft fees under its current policies and from engaging in the acts of unfair competition alleged herein.. Restitution of all overdraft fees paid to the Bank by Plaintiffs and the Class in the past four years in an amount to be determined at trial;. Disgorgement of the ill-gotten gains derived from the Bank s misconduct;. Actual damages in an amount according to proof;. Punitive and exemplary damages;. Pre-judgment interest at the highest rate permitted by law;. The costs and disbursements incurred by Plaintiffs in connection with this action, including reasonable attorneys fees pursuant to California Code of Civil Procedure. and California Civil Code 0; and. Such other and further relief as the Court deems just and proper

25

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